Citation Nr: 0106807
Decision Date: 03/08/01 Archive Date: 03/16/01
DOCKET NO. 99-14 926 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for paranoid schizophrenia.
REPRESENTATION
Appellant represented by: James W. Stanley, Jr.,
Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The appellant served on active duty from June 1965 to May
1966.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a July 1999 decision by the North Little Rock,
Arkansas, Regional Office (RO) of the Department of Veterans
Affairs (VA). In that decision, the RO declined to reopen a
claim for service connection for paranoid schizophrenia. In
a Supplemental Statement of the Case (SSOC) dated in
September 2000, the RO reopened the service connection claim,
but denied the claim on the merits.
REMAND
Initially, the Board notes that the RO has reopened and
adjudicated on the merits the claim for service connection
for paranoid schizophrenia. The Board has an obligation to
make an independent determination of its jurisdiction
regardless of findings or actions by the RO. Rowell v.
Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet.
App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).
The claim for service connection for paranoid schizophrenia
was initially denied by an RO decision dated in October 1966.
The evidence of record at that time failed to show that pre-
existing paranoid schizophrenia was aggravated in service.
The claim became final when the appellant withdrew his appeal
in June 1967. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§ 20.204(b) (2000). The RO declined to reopen this claim on
the same basis in unappealed decisions dated in July 1969 and
July 1972. See 38 U.S.C.A. § 7105(b)(1) (West 1991);
38 C.F.R. § 20.302(a) (2000). The RO again declined to
reopen this claim in a July 1999 rating decision, and this
appeal ensues from that decision.
As a general rule, once a claim has been disallowed, that
claim shall not thereafter be reopened and allowed based
solely upon the same factual basis. 38 U.S.C.A. § 5108 (West
1991); 38 C.F.R. § 3.156(a) (2000). However, a previously
disallowed claim can be reopened with the presentation of new
and material evidence. Id. In October 1999, the appellant
submitted a private psychologist opinion stating that his
pre-existing psychiatric disorder "was aggravated by his
experience in the military." This opinion, when accepted as
true, is relevant and probative to the question at hand, and
cures a previous evidentiary defect for this claim. As such,
the Board agrees with the RO that new and material evidence
has been submitted to reopen the claim.
The Board next notes that there has been a significant change
in the law during the pendency of this appeal. On November
9, 2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000). Among other things, this law redefines the duty to
assist obligation of VA by creating new notice and duty to
assist provisions. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
In light of the newly submitted evidence, the Board is of the
opinion that the RO should obtain the complete clinical
records from J.R.M., Ph.D. The Board further notes that a
January 1965 admission record from the Arkansas State
Hospital reflects that there are records from previous
admissions to this hospital which are not currently of
record. These records should be obtained, if available.
After this development has been completed, the Board is
further of the opinion that the RO should afford the
appellant VA examination by a psychiatrist for opinion, based
upon review of the claims folder, as to whether pre-existing
paranoid schizophrenia increased in severity beyond the
natural progress of the disorder during active service.
Accordingly, this case is REMANDED for the following:
1. The RO should obtain the complete
clinical records from J.R.M., Ph.D. The RO
should also attempt to obtain all inpatient
treatment records from Arkansas State
Hospital for the time period of 1961-65.
2. The appellant is hereby advised of his
right to submit additional evidence and
argument on the matter the Board has remanded
to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999). He is also informed of his
duty to cooperate with the RO in developing
his claim, to include providing written
consent(s) to obtain his private medical
records. Hayes v. Brown, 5 Vet. App. 60, 68
(1993) (a claimant must cooperate by
providing information within his/her
control).
3. Following the receipt of any additional
records, the appellant should be afforded VA
examination by a psychiatrist in order to
determine whether the pre-existing paranoid
schizophrenia was aggravated in service. The
examiner should review the contents of the
claims folder and obtain relevant history
from the appellant. Following the
examination, the examiner should express
opinion as to whether it is least as likely
as not that the appellant's pre-existing
paranoid schizophrenia increased in severity
beyond the natural progress of the disorder
during active service? The examiner must
indicate his review of the claims folder and
provide a rationale for the opinion
expressed. If an opinion cannot be medically
determined without resort to mere speculation
or conjecture, this should be commented upon
in the report. The claims folder and a copy
of this remand must be made available to the
examiner.
4. The RO must review the claims file and
ensure that all notification and development
action required by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475
is completed. In particular, the RO should
ensure that the new notification requirements
and development procedures contained in
sections 3 and 4 of the Act (to be codified
as amended at 38 U.S.C. §§ 5102, 5103, 5103A,
and 5107) are fully complied with and
satisfied. For further guidance on the
processing of this case in light of the
changes in the law, the RO should refer to
VBA Fast Letter 00-87 (November 17, 2000),
VBA Fast Letter 01-02 (January 9, 2000) and
any other pertinent formal or informal
guidance that is subsequently provided by the
Department, including, among others things,
final regulations and General Counsel
precedent opinions. Any binding and
pertinent court decisions that are
subsequently issued also should be
considered. If the benefit sought on appeal
remains denied, the appellant and his
representative should be provided with an
SSOC. The SSOC must contain notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and regulations
considered pertinent to the issue currently
on appeal. An appropriate period of time
should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).